Alito Seeks to Distance Himself From Previous Abortion Statements

By William Branigin
Washington Post Staff Writer
Wednesday, January 11, 2006; 6:57 AM

Supreme Court nominee Samuel A. Alito Jr., facing tough questioning on the second day of his Senate confirmation hearings, distanced himself today from a statement he made 20 years ago in opposition to abortion, saying he would approach the issue differently and keep "an open mind" if it came before him as a Supreme Court justice.

But Alito said his 1985 statement -- that the Constitution does not protect a right to an abortion -- accurately reflected his view at the time, and he cautioned that the principle of respect for Supreme Court precedents is not "an inexorable command" binding justices in future rulings.

Alito, a federal appeals court judge nominated by President Bush to replace retiring Justice Sandra Day O'Connor, made the statements in response to questioning from the chairman of the Senate Judiciary Committee, Sen. Arlen Specter (R-Pa.), a supporter of abortion rights.

Alito said he agreed "that the Constitution protects a right to privacy," the main underpinning of the Supreme Court's 1973 Roe v. Wade ruling that legalized abortion nationally. He also agreed with Specter that stare decisis, meaning to stand by that which is already decided, "is a very important doctrine" that must be considered.

Asked by Specter whether he regards a 1992 Supreme Court ruling that reaffirmed Roe v. Wade as a "super precedent," Alito demurred.

"I personally would not get into categorizing precedents as super precedents or super-duper precedents," he said. "Any sort of categorization like that sort of reminds me of the size of the laundry detergent in the supermarket." But he said that "when a precedent is reaffirmed, that strengthens the precedent."

However, Alito added, "Now, I don't want to leave the impression that stare decisis is an inexorable command, because the Supreme Court has said that it is not."

Alito said his 1985 anti-abortion memo was "a correct statement of what I thought" at the time, when he was an attorney in the Reagan administration.

"That was a statement that I made at a prior period of time when I was performing a different role, and as I said yesterday, when someone becomes a judge you really have to put aside the things you did as a lawyer at prior points in your legal career," Alito said.

If the issue were to come before him today, the first consideration would be precedent, he said.

"And if the analysis were to get beyond that point, then I would approach the question with an open mind and I would listen to the arguments that were made," Alito said. He repeated his remark in his opening statement yesterday that a judge "doesn't have an agenda" and is obliged to follow the law.

Near the end of more than seven hours of questioning, Alito sparred over the abortion issue with Sen. Charles E. Schumer (D-N.Y.), who held up a copy of the U.S. Constitution as he repeatedly challenged the nominee to state whether he still believes, as he wrote in 1985, that the Constitution does not protect an abortion right. Alito refused to say, sticking to the answer he gave Specter hours earlier.

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